News & analysis of the United States Court of Appeals for the Third Circuit, by Matthew Stiegler

New opinion — Third Circuit upholds rejection of price-fixing suit

A split Third Circuit panel today affirmed a grant of summary judgment in an antitrust price-fixing case. The majority opinion’s introduction:

This appeal involves an alleged conspiracy to fix prices in the titanium dioxide industry in violation of Section 1 of the Sherman Act. Appellant Valspar, a purchaser of titanium dioxide, claimed Appellee DuPont conspired with other titanium dioxide suppliers to fix prices. Valspar argued that the price-fixing agreement was made manifest primarily by thirtyone parallel price increase announcements issued by the suppliers. DuPont countered that the parallel pricing was not the product of an agreement, but rather the natural consequence of the marketplace. Specifically, DuPont posited that because the market for titanium dioxide is an oligopoly, the price movement was caused by “conscious parallelism”—an economic theory that explains oligopolists will naturally follow a competitor’s price increase in the hopes that each firm’s profits will increase. The District Court agreed with DuPont and granted its motion for summary judgment. We will affirm.

The dissenting judge, interestingly, was a district judge sitting by designation. And he dissented with vigor! He accuses the majority of adopting a “new approach that appears to shut the door on a district court’s ability to accept reasonable inferences in any case involving oligopolists” and that “misses by a mile an essential truth of actual courtroom litigation: that circumstantial evidence is competent, valid, and vital evidence in almost every conspiracy trial, civil or criminal.” Thirty-two pages long.

Joining Hardiman was Krause; dissenting was Stengel EDPA by designation. Arguing counsel were James Lockhart of Minnesota for the appellants, Shari Lahlou of Crowell & Moring for the appellee.